The Chapter FIVE (Institutional Arrangements) of ACTA is short. In less than 4 pages (pp 33-36) the negotiators “hereby establish” and “Oversight Steering Committee” (the OSC). Of course all of this chapter can be revisited later (see footnote 73) but let’s examine what is proposed now.
First, the text is not that different from the leaked version which is still most interesting because you can actually read what country proposed what. Maybe the negotiators do not perceive this chapter as possibly raising controversies (such as the now infamous “graduated response” language that has almost disappeared into vagueness)? However, I cannot help imagine that other existing institutions such as WIPO might not find the chapter creating a new institution so neutral. We will hopefully see some reactions since their work program will be impacted by the work defined and carried by this new agency.
Here’s a quick read of the chapter:
The Committee, the OSC is now to be a stand alone agency –with a mission, rules, procedures and a secretariat– not required to function under any existing and known institutions such at the World Intellectual Property nor the World Trade Organization as was proposed in one of the leaked text. Michael Geist describes this as an obvious attempt to circumvent WIPO and its more open, transparent and inclusive process (See Geist) and this is certainly going to be of great concerns for the many countries that were excluded during the negotiation process and that have after many years finally achieved some leverage at WIPO or WTO (more details on this type of forum shifting in Susan Sell’s analysis here).
What will the new institution (the OSC) do?
The OSC will “supervise the implementation” of ACTA (5.1.2(a). And in 5.1.2.(b), the institution will also oversee ACTA’s further elaboration or development, deal with matters concerning amendment and development. In case this is not broad and vague enough, it will also in (d) “consider any other matter that may affect the operation” of ACTA.
One has to wonder whether it is even worth trying to improve or to narrow the scope of ACTA since the OSC will be in charge of “further elaboration”. Could bad and harmful provisions be taken away…and then put back later?
The OSC “may” also establish a task force of experts to monitor the implementation. The OSC “may” seek the advice of NGOs, may make recommendations, may endorse guidelines, identify and monitor “piracy and counterfeiting and their evolution” (5.1.3. (a), (b), (c). ACTA OSC task force will be also be powerful because it is through it that countries will apply for membership and join ACTA. And again a very broad provision in (f), the institution may take other action as the “parties decide.” In other words, mission creep is built in in case it is too narrow?
The OSC will convene regular meetings that will be in English (5.1.6) but “preferably in Geneva”.
What will the Secretariat do (apart from providing good international jobs to more bureaucrats)?
Every two years, the country “chair” will change and provide a Secretariat that will among other tasks “elaborate all documents resulted from ordinary or extraordinary sessions” (5.2.2.(c)
Regarding transparency which has not been ACTA’s negotiators’ forte, the text has two options:
Option 1: Laws, regulations and procedures and decisions must be published or made publicly available in possibly a national language in an appropriate time.
Option 2: Judicial decisions and administrative rulings regarding the enforcement of IPR must be explained, in writings and made available to the public.
Also quite interesting is paragraph 4:
“Nothing in paragraphs [1, 2 and 3][1 and 2] shall require a Party to disclose
{confidential} information which would impede law enforcement or otherwise be
contrary to [domestic laws and policies, or] the public interest or would prejudice the
legitimate commercial interests of particular enterprises, public or private.”
Finally in the entirely bracketed Article 5.6 regarding Observers, the text calls for the possibility of an invitation for “international organizations active in the field of intellectual property and to non-governmental groups” of IP “stake-holders” to attend sessions or part of session of the OSC. There is no definition of what is an IP Stake-holder and we just have to hope that it will include consumers and civil rights organizations.
ACTA is a clearly a new specie. This plurilateral agreement is the first IPR related law making instrument negotiated totally outside of WTO or WIPO. It does not need to be approved by the US Senate and while we finally got a text (heavily bracketed with no official information on what country is pushing for what), we have little or no access to basic information such as the agenda of the next meetings and who are the participants.
So, we got a text, we know there will be a new international enforcement agency somewhere… but no seat at the table. Yet.
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Here is the Chapter Five:
33
CHAPTER FIVE
INSTITUTIONAL ARRANGEMENTS 73
ARTICLE 5.1: THE [OVERSIGHT] [STEERING] [COMMITTEE]
1. The [Contracting] Parties [hereby establish][ [shall have a] the
[Oversight][ACTA] [Steering] Committee, comprising [[representatives of] [each of]
the Parties] [one delegate from each Party who may be assisted by alternative delegates,
advisors and experts.]
2. The Committee shall:
(a) supervise the implementation of this Agreement; [including a periodic
mutual evaluation process of the implementation of the Agreement by
the parties, according to the principles of equal treatment and a fair
hearing.]
(b) [oversee [its][the] [the Agreement’s] further elaboration [or
development?] [of this Agreement], [deal with matters concerning the
amendment and development of this Agreement] while ensuring that
such[elaboration][ development]does not duplicate other international
efforts regarding the enforcement of intellectual property rights;
(c) [[resolve][facilitate the avoidance of] disputes that may arise regarding
[its][the] interpretation or application[ 74 ] [of this Agreement]; ]and
(d) consider any other matter that may affect the operation of this
Agreement.
3. The Committee may:
(a) [establish,] [and delegate [tasks] tasks/responsibilities] to, ad hoc or
standing committees working groups or [Government] experts
groups;][to assist the Committee in accomplishing its tasks;][a Task-
Force to undertake the monitoring and the evaluation of the Agreement,
namely by reviewing the implementation of Parties’ obligations, as
defined in Article 5.1.2.a) and assisting candidate countries to join the
Agreement. This Task-Force should consist of experts appointed by the
Parties and agreed upon by the Oversight Committee;]
(b) seek the advice of non-governmental persons or groups [from the State
73
At least one delegation reserves its right to revisit elements of this chapter at a later date.
74
The application of this provision shall not conflict with the rules and implementation of the Dispute
Settlement Understanding of the World Trade Organization.
34
Parties];
(c) [make recommendations regarding the implementation of the Agreement
[including endorsing best practice guidelines for implementing the
Agreement, identifying and monitoring techniques of piracy and
counterfeiting and their evolution]];
(d) assist non-Party governments in assessing the benefits of accession to the
Agreement [and share information and best practices on reducing IPR
infringements];
(e) [support international organizations in the enforcement of intellectual
property rights;] and
(f) take such other action in the exercise of its functions as the Parties may
decide.
[4. One-half of the members of the Committee shall constitute a quorum.]
5. The Committee shall [establish its rules and procedures][ at its first meeting
adopt its rules of procedures] [including rules for the convocation of extraordinary
sessions]. All decisions of the Committee shall be taken by consensus, [except as the
Committee may otherwise decide [by consensus]]. [The working language of the
Committee shall be English.]
6. The Committee shall convene [at least [once a year]] [once every two years] [in
regular session]. [T]he Committee shall be chaired [and hosted][ successively by each
Party][by a volunteering Party] [in English alphabetically] . [assisted by a Vice-Chair
from the Party due to chair and host the subsequent meeting.] [A Special session may be
called for by one Party and convened if the majority of the Parties does not oppose such
request. The Special session shall be chaired by the Party chairing the Regular session
of that year. The Committee shall preferably meet in Geneva.]
[7. The Committee’s role as set forth in Article 5.1 shall not include any
oversight or supervision relating to domestic or international criminal investigations or
enforcement of specific intellectual property cases.]
ARTICLE 5.2: THE SECRETARIAT
1. The Party that is the Chair of the Committee shall provide the Secretariat to the
Committee for [the calendar year][the two calendar years beginning with the calendar
year [immediately prior to that]] in which the Committee shall be convened with that
Party as Chair.
2. The functions of the Secretariat shall be:
35
(a) to provide assistance to the Committee [as required, and];
(b) [to provide administrative support to the Chair][to perform the
administrative tasks concerning this Agreement.]
(c) [to elaborate all documents resulted from ordinary or extraordinary
sessions]
(d) [to submit documents derived from ordinary or extraordinary sessions to
all parties]
ARTICLE 5.3: CONTACT POINTS
1. [Each Party shall designate a [current] contact point to facilitate communications
[between the][ with other] Parties on any matter covered by this Agreement.]
[The][Each Party shall transmit the] [name, [and][physical] address, telephone number
[and e-mail address]] of that contact point [shall be transmitted] to the Depositary [prior
to the entry into force of the Agreement for that Party], who shall circulate the
information to the Parties.
2. On the request of [another][one] Party, the contact point [of another Party] shall
identify [the] [according to the matter concerned, an appropriate] office or official
[responsible for the matter concerned] and assist, as necessary, in facilitating
communication between the [responsible] office or official concerned with the
requesting Party.
[ARTICLE 5.4: TRANSPARENCY
Option 1
[1. Each Party shall ensure that its laws, regulations,[procedures] [final judicial
decisions], and administrative rulings of general application respecting any matter
covered by this Agreement are promptly [in an appropriate time] published or otherwise
made publicly available [in a national language,] in such a manner as to enable
governments and interested persons to become acquainted with them.]
Option 2
[1. Each Party shall ensure that final judicial decisions or administrative rulings of
general applicability pertaining to the enforcement of intellectual property rights shall
be in writing and shall state any relevant findings of fact and the reasoning or the legal
basis upon which the decisions are based. Each Party shall also ensure that such
decisions or rulings shall be published 75 , or otherwise made publicly available, in a
national language in such a manner as to enable governments and interested persons to
become acquainted with them.]
[75For greater certainty, a Party may satisfy the requirement in [Article 5.3] to publish a measure by
making it available to the public on a publically accessible Internet site.]
36
[2. Each Party shall notify the laws and regulations referred to in [paragraph (1)][
Article 4.3] to the Oversight Committee in order to assist that Committee in its review
of the operation of this Agreement.]
3. Each Party shall supply, in response to a written request from another Party,
information regarding its laws, regulations, [procedures][ final judicial decisions] and
administrative rulings of general application [respecting][ with respect to] any matter
covered by this Agreement.
4. Nothing in paragraphs [1, 2 and 3][1 and 2] shall require a Party to disclose
{confidential} information which would impede law enforcement or otherwise be
contrary to [domestic laws and policies, or] the public interest or would prejudice the
legitimate commercial interests of particular enterprises, public or private.
ARTICLE 5.5: CONSULTATION
Each Party shall [accord sympathetic consideration to, and shall] afford adequate
opportunity for consultation regarding, such representations as may be made [to it] by
another Party with respect to any matter affecting the operation of this Agreement.
[ ARTICLE 5.6: OBSERVERS
Countries candidate to become a Party to the Agreement may be invited [by the
Committee] to attend sessions or parts thereof of the Oversight Committee as
observers. An invitation under the same status may be extended [by the Committee]
to international organizations active in the field of intellectual property and to non-
governmental groups of intellectual property stake-holders]